Reviewed by Georg Vanberg, Department of Political Science, University of North Carolina. Email: gvanberg [at] unc.edu.

pp.875-878

Saul Brenner and Paul Whitmeyer’s STRATEGY ON THE UNITED STATES SUPREME COURT is an attempt to assess “whether the justices on the Court behave strategically” (p.161). In posing this question, the book – which is intended for undergraduate and graduate students – engages a debate in judicial politics that has posited three alternative models for understanding judicial behavior: The “legal,” “attitudinal,” and “strategic” models. In trying to adjudicate between these – and in particular, in determining how much support there is for the “strategic” model, the book is far-reaching, and touches on a wide array of important aspects of judicial behavior. In its theoretical concerns and in its empirical scope, the book thus promises to cover a lot of ground that has been considered central by scholars of the field. Nevertheless, it is hard to avoid a sense of disappointment in making one’s way through the book. There are two reasons – one connected to the book itself, the other to the general question the book poses.

The first derives from the fact that the book is perhaps more broad in scope than can be meaningfully managed in its limited page length. The book consists of fifteen chapters that address such diverse issues as the decision by litigants to pursue a case, the justices’ votes at the cert stage, their conference and merits votes, the size of coalitions, and the location of majority opinions. Not surprisingly for a short book, the inclusion of so many aspects of judicial behavior necessarily constrains how detailed the treatment of any of them can be. Most chapters are brief, and typically revolve around a review of one or two articles or books dealing with the chapter’s topic. By itself, this is not necessarily an unwise approach. After all, a judicious selection of leading articles could well serve as a foundation for examining a more general set of claims they represent. Oddly enough, however, the choices made by the authors result in treating fairly dated research as representative of “current thinking,” and often afford more current scholarship little more than a light gloss. (For example, the chapter on coalition size consists of a five-page critique of a paper written by Dave Rohde more than 35 years ago. The chapter on the influence of public opinion on the Supreme Court is eight pages long, and relies on three sources, two of which are cited in passing.) While brevity is often a virtue, in this case, it raises two difficulties. The first is that the book necessarily ignores significant portions of the literature that bear directly on the problems at hand. For example, the possibility that Supreme Court decisions are shaped by public opinion is [*876] dismissed because “the justices are not in the business of following the public mood” (p.135) based on the conclusions of one study. The chapter does not discuss competing findings in a number of other studies (e.g., the debate between Mishler/Sheehan and Norpoth/Segal; or recent work by McGuire and Stimson). In a book that is intended to provide graduate students with an overview of the field, such a limited engagement with the literature is problematic; it becomes especially so when the authors provide no explanation for their choices in excluding or including relevant literature. This is not to suggest that Brenner and Whitmeyer do not impart important lessons; on the contrary, they offer some useful critiques of the scholarship they survey. Nevertheless, because the scope is so limited, the book runs the danger of misleading readers into believing that there are no alternative views (often more recent) that bear upon – and sometimes contradict – the principal conclusions.

A second limitation of the book derives from the broader debate regarding the “legal,” “attitudinal,” and “strategic” models. To appreciate this limitation, it is useful to start with a definition of “strategic” behavior. Behavior is strategic – a better term might be “sophisticated” – when the following conditions are satisfied: i) An actor faces a choice situation in which the final outcome that her behavior produces is a function not only of the actor’s own actions, but also of actions taken by other individuals, ii) the actor takes an action X that – could the action directly produce an outcome – is less preferred by the actor than an alternative action Y, iii) the actor chooses X because she expects – given the behavior of other relevant individuals – that the final outcome, which results from the interactions of many individuals, of taking action X is preferable to the final outcome produced by taking action Y. This is a cumbersome definition, but strategic voting provides an easy, illustrative example: A faculty member on a departmental hiring committee may choose to support candidate A whom she prefers less than candidate B if she believes that there will not be sufficient support to hire A, and she believes that her support of B may result in an offer to B, whom she prefers to the other viable candidate C. In short, sophisticated behavior takes into account the totality of the choice situation confronting an individual: Individuals act in ways that advance their interests as reflected in the ultimate outcomes that result from a social interaction. They do not act in ways that ignore the interdependence of choices in a social environment.

Given this definition, would Brenner and Whitmeyer argue that the justices do not act in a sophisticated manner? Surely not. The authors would undoubtedly agree that the justices are engaged in a high stakes game with tremendous consequences for the lives of millions of Americans. This game is structured by the collegial nature of the institution and its place in the broader American political system. The justices are highly intelligent, and have strong beliefs about the nature of good law and good policy. It would be hard to imagine that they do not take into account how the broader environment in which they act will affect the impact of their individual choices on the law and on public policy. In this very general, abstract sense, the justices are thus surely “strategic” or “sophisticated.” [*877]

Brenner and Whitmeyer, however, do not conceive of strategic justices in this sense. Rather, they seek to make a distinction – a distinction common to many judicial scholars – that suggest that justices pursue either their legal (or alternatively, policy) goals or their strategic goals. But, of course, there are no strategic goals in and of themselves. One implication is that the distinction between the “legal,” “attitudinal,” and “strategic” models is somewhat misleading. To be sure, various theories disagree about the nature of the justices’ preferences and about the constraints and incentives that they face, but even traditional proponents of the importance of legal doctrine or of the justices’ policy attitudes do not hold that justices are not sophisticated. To take a prominent example, the difference between Ferejohn and Weingast’s (1992) override model (which argues that justices will adjust their jurisprudence to take account of Congressional preferences, and moderate decisions so as not to provoke an override) and Segal and Spaeth’s (2002) work (which severely discounts such a possibility) is not that justices are sophisticated in one account and not in the other. Rather, the two arguments are distinguished by a specific – ultimately empirical – disagreement over whether Congressional overrides constitute a credible threat to judicial decisions that will shape judicial behavior. In one case, pursuing their goals requires justices to take account of Congressional preferences; in the other, this is not necessary.

Understood in this sense, the distinction between the “legal,” “attitudinal,” and “strategic” models that has haunted judicial politics is not a particularly useful trichotomy; indeed, it makes little sense to discuss a “strategic” justice unless we first specify what goals such a justice might be pursuing. We can, however, argue about the theoretical and empirical power of specific theories that differ with respect to the preferences imputed to the justices, and the nature of the constraints and incentives they are assumed to confront. Brenner and Whitmeyer’s chapter on “The Separation of Powers Model” illustrates this point. The chapter does not review or investigate specific models of inter-branch relationships; instead, it asserts (without any citations to specific models) a “separation of powers model” and then summarizes criticisms of this model. Under that generic heading, though, scholars have offered a number of competing visions regarding how and when inter-branch relations affect judicial decision-making. The problem is that the critiques that Brenner and Whitmeyer offer apply only to specific models; they are not relevant to other models. (For example, one of their critiques is that “the justices have perfect and complete information about the preferences of Congress” (p.117). This assumption is generally not central to the conclusions of models that make it; moreover, some models do not assume perfect information.) As a result, the chapter does not succeed in providing an overview of the various models of inter-branch relationships, nor does it provide a particularly compelling review of the evidence that supports or contradicts any specific model.

Over the last few years, judicial scholars have increasingly come to realize that the distinction between the three “models” of judicial behavior is not particularly useful. Instead, there is now [*878] widespread recognition that fundamental disagreements center not on whether judges are “strategic,” but rather on what the preferences of judges are, and what features of their environment – if any – they regard as relevant constraints in pursuing their goals. The Brenner and Whitmeyer book would have been more useful as a teaching tool for undergraduate and graduate courses had it reflected these developments.

REFERENCES:Ferejohn, John, and Barry Weingast, 1992. “A Positive Theory of Statutory Interpretation.” INTERNATIONAL REVIEW OF LAW AND ECONOMICS 12, 263–279.